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Old 03-06-2017, 09:03 PM
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Default Case File Confidentiality / Privacy Rules

I've been thinking about this lately, and was wondering if someone (preferably a practicing lawyer or paralegal) could shed some light on the subject.
  • What is the legality / rules (if any) in regards to making a court record publicly available?

  • What qualifies a case for publication to CANLII?

  • What is the extent of the information generally published to CANLII?
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Old 03-06-2017, 10:02 PM
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Quote:
Originally Posted by ninehundredt View Post
I've been thinking about this lately, and was wondering if someone (preferably a practicing lawyer or paralegal) could shed some light on the subject.
  • What is the legality / rules (if any) in regards to making a court record publicly available?

  • What qualifies a case for publication to CANLII?

  • What is the extent of the information generally published to CANLII?
I'm not a lawyer or paralegal but I know enough to sue one.

we have an open court system. all court documents are available to public, unless they are sealed. Specific documents from a file or the entire file can be sealed. it's not easy to seal court documents. even when a file is sealed you may be able to access the orders made. not every document makes it to court file permanently (i.e. . settlement conference brief , affidavit for removing lawyer off record, etc. these documents are handed back immediately after their respective conferences/motions )

judges decide what cases to publish on canlii and what not to publish. not every case makes it there. when a case is not on canlii it doesn't necessarily mean that the case is sealed.

Last edited by trinton; 03-06-2017 at 10:10 PM.
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Old 03-08-2017, 03:24 PM
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Quote:
What is the legality / rules (if any) in regards to making a court record publicly available?
CAS files are not publicly accessible except to the parties, children of age and counsels of record.

Otherwise, all family files (and criminal, and civil) are publicly available unless sealed. If you requisition the file you can review it and copy from it, although court staff may be suspicious if a layman wants to copy someone else's financial information without giving a reason.

Quote:
What qualifies a case for publication to CANLII?
CanLII decides. Generally, if a judge reserves then gives a written endorsement setting out their decision with reasons there is a higher chance it makes it to CanLII. This appears to vary between jurisdictions. By written, I refer to a typed decision rather than scrawls across an endorsement page.

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What is the extent of the information generally published to CANLII?
CanLII publishes the decision verbatim.
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Old 03-08-2017, 04:26 PM
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Originally Posted by OrleansLawyer View Post
CAS files are not publicly accessible except to the parties, children of age and counsels of record.

Otherwise, all family files (and criminal, and civil) are publicly available unless sealed. If you requisition the file you can review it and copy from it, although court staff may be suspicious if a layman wants to copy someone else's financial information without giving a reason.



CanLII decides. Generally, if a judge reserves then gives a written endorsement setting out their decision with reasons there is a higher chance it makes it to CanLII. This appears to vary between jurisdictions. By written, I refer to a typed decision rather than scrawls across an endorsement page.



CanLII publishes the decision verbatim.
Interesting. So either party could publish case files (orders, OCL reports, correspondence...etc) on a website for all to see without consequence?

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Old 03-08-2017, 06:56 PM
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My divorce was handled by way of a binding JDR (binding arbitration) with a judge...it is private and fortunately will never hit the pages of CanLII. In fact, over the years after our divorce when my ex took me back to court many times, each and every judge commented that the JDR was private and refused to entertain any discussion, whatsoever, on it.

I agree with OrleansLawyer's post.

A very small percentage of cases are published in CanLii.
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Old 03-09-2017, 03:38 PM
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If you don't want your stuff in the public record don't go to court, settle the matter and come to an agreement or go to private arbitration.
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Old 03-09-2017, 05:32 PM
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So either party could publish case files (orders, OCL reports, correspondence...etc) on a website for all to see without consequence?
No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

A related article:
http://www.fasken.com/files/Event/75...dentiality.pdf
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Old 03-10-2017, 12:39 PM
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Quote:
Originally Posted by OrleansLawyer View Post
No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

A related article:
http://www.fasken.com/files/Event/75...dentiality.pdf
And I add... To publish the stuff would make you look like an idiot and a judge would rain down hell on you for doing it.
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Old 03-10-2017, 04:36 PM
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Quote:
Originally Posted by OrleansLawyer View Post
No. There is an implied undertaking not to share or reproduce this information outside of the litigation.

Ontario: https://www.canlii.org/en/on/onca/do...anlii1888.html
BC: http://www.canlii.org/en/bc/bcca/doc...anlii1800.html

A related article:
http://www.fasken.com/files/Event/75...dentiality.pdf
This is what I was looking for.

Quote:
Originally Posted by Tayken View Post
And I add... To publish the stuff would make you look like an idiot and a judge would rain down hell on you for doing it.
How did you reach that conclusion?

I just remembered there was a recent case of something similar happening where the father posted court documents which painted a negative image of the mother and caused her to receive death threats. Maybe someone will chime in with the exact case.

Last edited by ninehundredt; 03-10-2017 at 04:49 PM.
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Old 03-13-2017, 10:18 AM
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Just search any case involved with "Canada Court Watch" and see how the judges dealt with the nonsense. There are hundreds of examples of judges ordering the removal of websites.

I can't think of a single case example where a parent went out and posted court documents and was successful in gaining majority access and sole custody. LOL.

Making a divorce and custody and access dispute very public on the internet is never a good idea. It smells of "revenge-porn-like" conduct.
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